Why Misdemeanors Matter: Defining Effective Advocacy in ...

[Pages:96]Why Misdemeanors Matter: Defining Effective Advocacy in the

Lower Criminal Courts

Jenny Roberts*

Most individuals accused in our nation's criminal courts are not charged with murder, rape, drug sales, or even less serious felonies. The vast majority of charges are in the lower courts, for misdemeanors such as marijuana possession, driving with a license suspension for failure to pay tickets, assault, disorderly conduct, or public intoxication. Misdemeanor adjudications have exploded in recent years, with one recent study estimating that the volume of misdemeanor cases nationwide has risen from five to more than ten million between 1972 and 2006. At the same time, violent crime and the number of felony cases across the country have decreased markedly.

A common misperception is that misdemeanor charges might lead to a night in jail and the punishment of going through the process -- often requiring a number of court appearances -- culminating in dismissal, deferred adjudication, or a quick guilty plea with community service, a fine, or perhaps some small amount of jail time. Yet the consequences of even the most "minor" misdemeanor conviction can be far reaching, and include deportation, sex offender registration, and loss of public housing and student loans. In addition, criminal records are now widely available electronically and employers, landlords, and others log on to check them. These "collateral consequences" of a misdemeanor conviction are often more dire than any direct criminal penalty.

What often stands between an individual and an avoidable misdemeanor conviction, with its harsh effects, is a good lawyer. Yet a profound crisis exists in the lower courts, brought about by a widespread lack of zealous representation for indigent people charged with misdemeanors. Many individuals charged with low-level crimes receive representation from defense attorneys with overwhelming caseloads, in a criminal justice system singularly focused on rapid finality in the large numbers of docketed cases. Despite this urgent situation, the body of scholarship on

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the right to effective representation and the indigent defense crisis has largely ignored misdemeanors. This Article describes how ineffective assistance jurisprudence is undeveloped for misdemeanors and how published professional standards for defense advocacy have failed to address misdemeanors. There is almost no guidance about proper norms for this distinct category of cases. This Article calls for responses to the misdemeanor representation crisis from the three groups situated to make a difference in this area based on their particular institutional competencies: the judiciary, the defender community, and professional organizations that draft standards for practice. Without proper administration, including effective defense representation, the current approach to mass misdemeanor processing and prosecution significantly impedes substantive justice for the individual, public perception of justice, and public safety.

TABLE OF CONTENTS INTRODUCTION ................................................................................... 279

I. THE DIFFERENCES, AND CERTAIN SIMILARITIES, BETWEEN MISDEMEANOR AND FELONY LAWYERING ................................. 290 A. Higher Caseloads and Workloads for Misdemeanor Attorneys ........................................................................... 294 B. Minor Criminal Convictions Lead to Major Collateral Consequences .................................................................... 297 C. Complexities of Misdemeanor Practice............................... 303 D. Coercion and Plea Bargaining in the Misdemeanor Context.............................................................................. 306

II. LACK OF GUIDANCE ON THE MEANING OF EFFECTIVE ASSISTANCE OF COUNSEL FOR MISDEMEANORS ......................... 309 A. The Threshold Issue of the Right to Counsel in Misdemeanor Cases ........................................................... 310 B. The Failure to Define Effective Misdemeanor Lawyering ... 313 1. Lack of Misdemeanor Representation Guidance in Ineffective Assistance of Counsel Jurisprudence ....... 313 2. Lack of Misdemeanor Representation Guidance in Professional Standards for Defense Representation ... 322

III. INSTITUTIONAL COMPETENCIES IN RESPONDING TO THE NEED FOR MISDEMEANOR STANDARDS...................................... 329 A. The Legislative Role: Moving Minor Misdemeanors Out of the Criminal Justice System ........................................... 331 B. The Role of Courts as Provocateurs.................................... 333

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1. Structural Impediments to Development of Misdemeanor Ineffective Assistance Jurisprudence and Suggestions for Reform........................................ 336 a. Structural Impediments ......................................... 337 b. Suggestions for Avoidance of Structural Impediments, and Reform ...................................... 340

2. The Problem of Resource Deprivation Driving Constitutional Rules................................................... 346

3. The "Localism" Problem in Ineffective Assistance Jurisprudence ............................................................. 348

C. The Role of Professional Organizations: Promulgating Standards for Misdemeanor Representation ....................... 356

D. The Role of the Defender Community................................. 360 1. Collateral Consequences as a Focus of Misdemeanor Attorney Training and Practice ........... 363 2. Lowering High Rates of Waiver of the Right to Counsel in the Lower Courts ..................................... 367

CONCLUSION....................................................................................... 370

INTRODUCTION

It is time to end the wasteful and harmful practices that have turned our misdemeanor courts into mindless conviction mills.

-- Former Florida Supreme Court Chief Justice Gerald Kogan1

In Detroit, Michigan, the Misdemeanor Defender Professional

Corporation has a flat-fee contract with the City of Detroit to handle between 12,000 and 14,000 cases each year.2 The five part-time

* Copyright ? 2011 Jenny Roberts. Associate Professor, American University, Washington College of Law. Many thanks to Gabriel "Jack" Chin, Robert Dinerstein, Cara Drinan, Roger Fairfax, Babe Howell, Lewis Grossman, Mary Holland, Cynthia Lee, Stephen Lee, Margaret Colgate Love, Binny Miller, Rebecca Rosenfeld, Juliet Stumpf, Andrew Taslitz, Robert Tsai, and Ronald Wright, as well as participants at panels and workshops at LatCrit 2009, Syracuse University College of Law, the 2009 AALS Clinical Conference, American University, Washington College of Law, and the William & Mary School of Law Faculty Colloquium. For research assistance, thanks to Esther Cajuste, Sarah Comeau, Erin P. Creaghe, Sarah Kravitz, Jenny Bone Miller, Nick Moore, and Diana Pak.

1 ALISA SMITH & SEAN MADDAN, NAT'L ASS'N OF CRIMINAL DEF. LAWYERS, THREEMINUTE JUSTICE: HASTE AND WASTE IN FLORIDA'S MISDEMEANOR COURTS 8 (2011) [hereinafter THREE-MINUTE JUSTICE].

2 NAT'L LEGAL AID & DEFENDER ASS'N, "A RACE TO THE BOTTOM," EVALUATION OF THE TRIAL-LEVEL INDIGENT DEFENSE SYSTEMS IN MICHIGAN 23 (2008) [hereinafter RACE TO THE BOTTOM].

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Corporation attorneys must carry between 2,400 and 2,800 misdemeanors a year, which is more than 500 percent greater than the nationally recognized caseload recommendation of 300?400 misdemeanors per year for full-time defenders.3 This means that Corporation attorneys will spend an average of thirty-two minutes, or about $51 of legal services, on each client's case.4 Thirty minutes south, in Woodhaven, Michigan, a similar situation occurs. There, a person charged with a misdemeanor who is entitled to courtappointed counsel will be represented at a pretrial conference by "house counsel" who represents every indigent defendant in court that day.5 Those facing misdemeanor charges cannot meet their attorney until the day of court, "which could be anywhere from one to three weeks after arraignment."6 The court administrator in Woodhaven "estimated that, in an average year, there would be one motion filed by house counsel and maybe two jury trials involving an indigent defendant."7

These stories of assembly-line representation in the lower criminal courts have received little attention. Instead, scholars, practitioners, and the press have highlighted inadequate representation cases such as one where a court deemed "effective" the performance of a sleeping lawyer in a death penalty case.8 A series of DNA exonerations of innocent men and women in high-profile cases have also "reveal[ed] a trail of sleeping, drunk, incompetent and overburdened defense attorneys."9 These shocking examples and others deserve continuing criticism; the stakes were high, and the representation was egregious.

Contrary to popular belief, however, the vast majority of criminal cases in the United States are not felonies. They are misdemeanors: "minor" dramas played out in much higher numbers every day in

3 Id.; see also infra note 77 and accompanying text (describing nationally recommended caseload standards).

4 RACE TO THE BOTTOM, supra note 2, at 23. 5 Id. at 27. 6 Id. (noting that "the court does not give out house counsel phone numbers until the day of court"). 7 Id. 8 See McFarland v. Texas, 928 S.W.2d 482, 505 (Tex. Crim. App. 1996); Jeffrey L. Kirchmeier, Drink, Drugs, and Drowsiness: The Constitutional Right to Effective Assistance of Counsel and the Strickland Prejudice Requirement, 75 NEB. L. REV. 425, 460-63 (1996); Bob Herbert, In America; The Death Factory, N.Y. TIMES, Oct. 2, 2000, at A27, available at . 9 Bad Lawyering, THE INNOCENCE PROJECT, understand/Bad-Lawyering.php (last visited July 11, 2011).

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lower courts across the country.10 A 2008 analysis of eleven state

courts revealed that misdemeanors comprised 79% of the total caseload in those courts.11 In addition to comprising the majority of

criminal cases, misdemeanors are also on the rise. One recent study

estimated that the volume of misdemeanor cases nationwide has risen from five to more than ten million between 1972 and 2006.12 This

change has taken place across diverse jurisdictions. In New York State, misdemeanor arrests rose from 363,634 in 2001 to 423,947 in 2010.13 The public defender in Lancaster County, Nebraska experienced a

56% increase in the number of new misdemeanor cases between 2003 and 2007.14 In Florida, almost "a half million people, or approximately

10 See N.Y. STATE DIV. OF CRIMINAL JUSTICE SERVS., ADULT ARRESTS: 2001?2010, available at [hereinafter NEW YORK STATE ADULT ARRESTS: 2001?2010] (listing statistics for "adult arrests" for New York States in 2010 as 584,558 total, of which 423,947 were misdemeanors and 160,611 were felonies).

11 ROBERT C. LAFOUNTAIN ET AL., EXAMINING THE WORK OF STATE COURTS: AN ANALYSIS OF 2008 STATE COURT CASELOADS 47 (2010), available at d_research/csp/2008_files/EWSC-2008-Online%20Version%20v2.pdf; see also NEW YORK STATE ADULT ARRESTS: 2001-2010, supra note 10 (noting almost 600,000 arrests in 2010, with felonies comprising just over 160,000 of that total); Steve W. Perry, Prosecutors in State Courts, in U.S. DEP'T OF JUST., BUREAU OF JUST. STATS. BULL., at 6 (Ser. No. NCJ 213799, 2006) ("In 2005 State court prosecutors reported closing over 2.4 million felony cases and nearly 7.5 million misdemeanor cases."), available at . The actual difference between prosecuted misdemeanors and felonies is even greater, as only 95% of all state prosecutors' offices reported handling misdemeanor cases. Id. at 4 tbl.5. County attorneys or perhaps police officers presumably prosecuted misdemeanors in the remaining five percent of jurisdictions, or the court handled the disposition without any prosecutorial involvement.

12 See ROBERT C. BORUCHOWITZ, MALIA N. BRINK & MAUREEN DIMINO, NAT'L ASSOC. CRIMINAL DEF. LAWYERS, MINOR CRIMES, MASSIVE WASTE: THE TERRIBLE TOLL OF AMERICA'S BROKEN MISDEMEANOR COURTS 11 (2009) [hereinafter MINOR CRIMES, MASSIVE WASTE] (citing National Center for State Courts, 2007 Criminal Caseloads Report finding that in data gathered in 12 states in 2006, there was a "median misdemeanor rate of 3,544 per 100,000" people).

13 See NEW YORK STATE ADULT ARRESTS: 2001?2010, supra note 10 (listing numbers demonstrating that misdemeanor arrests climbed substantially each year from 2000 to 2009, with the exception of 2004); see also JUSTIN BARRY & LISA LINDSAY, OFFICE DEPUTY CHIEF ADMIN. JUDGE, CRIMINAL COURT OF THE CITY OF NEW YORK: 2009 ANNUAL REPORT 26-27 (2010), available at AnnualReport2009.pdf.

14 ELIZABETH NEELEY, LANCASTER COUNTY PUBLIC DEFENDER WORKLOAD ASSESSMENT JULY 2008, at 1 (2008), available at projects/Public%20Defender/Public%20Defender%20Workload%20Assessment.pdf. The corresponding felony picture is quite different. Between 2000 and 2009, the violent crime rate in the United States fell by 39%. Both violent and property crime rates in 2009 were at their lowest recorded levels since 1973. Jennifer L. Truman &

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3% of the state's adults, pass through [the] misdemeanor courts each year."15 These numbers reflect a recent explosion of misdemeanor adjudications flooding trial courts around the country. Although full

exploration of the causes of rising misdemeanor volume are beyond

the scope of this Article, the adoption of zero-tolerance policing and broken windows theory -- which claim that policing minor quality-of-

life offenses helps control violent crime -- are largely responsible for the trend in many jurisdictions.16

The high-volume misdemeanor system is clearly in crisis.

Misdemeanor defenders handle caseloads far above nationally recommended standards,17 yet have few resources to investigate and perform the core tasks for their clients' cases.18 They practice in

overcrowded courts where defendants are pressured to enter quick

guilty pleas without adequate time to consult with the attorney they may have just met.19 Their potential clients often face pressure to waive the right to counsel in order to enter a guilty plea.20

Michael R. Rand, Criminal Victimization, 2009, in U.S. DEP'T JUST., BUREAU OF JUST. STATS. BULL. at 2-3, (Ser. No. NCJ 231327, 2010), available at ; cf. FED. BUREAU OF INVESTIGATION, U.S. DEP'T OF JUST., CRIME IN THE UNITED STATES 2005: PERCENT CHANGE IN VOLUME AND RATE PER 100,000 INHABITANTS FOR 2 YEARS, 5 YEARS, 10 YEARS (2009), available at (showing how, between 2000 and 2009, the violent crime rate fell 15.2% per 100,000 inhabitants). Except for burglary, violent crime fell in every category, including murder, rape, and aggravated assault. It also fell 31.5% for motor vehicle theft during that ten-year period. Id. In New York, for example, violent felony arrests dropped from more than 51,000 in 2001 to 44,000 in 2010. NEW YORK STATE ADULT ARRESTS: 2001-2010, supra note 10 (listing overall felony total as dropping from 169,942 in 2001 to 160,611 in 2010).

15 See THREE-MINUTE JUSTICE, supra note 1, at 9 app. C. 16 See James Q. Wilson & George L. Kelling, Broken Windows, ATLANTIC MONTHLY, Mar. 1982, at 29 (introducing the "broken windows" theory); see also Peter A. Barta, Note, Giuliani, Broken Windows, and the Right to Beg, 6 GEO. J. ON POVERTY L. & POL'Y 165, 168?69 (1999) (summarizing Mayor Giuliani's "zero-tolerance policing" approach and its effects on New York City's homeless population); cf. BERNARD E. HARCOURT, ILLUSION OF ORDER: THE FALSE PROMISE OF BROKEN WINDOWS POLICING 6-7 (2001) (scrutinizing the evidence and policy behind the "broken windows" theory). 17 See infra Part I.A. 18 See ABA STANDING COMM. ON LEGAL AID & INDIGENT DEFENDANTS, GIDEON'S BROKEN PROMISE: AMERICA'S CONTINUING QUEST FOR EQUAL JUSTICE 10-11, 19 (2004), available at fullreport.pdf [hereinafter GIDEON'S BROKEN PROMISE]; MINOR CRIMES, MASSIVE WASTE, supra note 12, at 38. 19 See infra Part I.D (discussing coercive aspects of plea bargaining in the lower courts). 20 See infra Part III.D.2 (discussing waiver of the right to counsel).

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The Sixth Amendment right to effective assistance of counsel applies to many misdemeanor cases and implicates many of these issues of high workloads, resource deprivation, and substantive and procedural justice.21 There are also ethical rules, state laws, and professional guidelines relevant to criminal defense representation. Yet, the crisis in effective misdemeanor representation confronts a blank slate of standards specific to misdemeanor practice. The Supreme Court has never applied Strickland v. Washington's two-pronged ineffective assistance of counsel test in the misdemeanor context.22 Although some lower court decisions have done so, these cases do not tackle the difficult question of what differences there are, if any, between effective representation in felony and misdemeanor cases.23 Professional standards, an important source for norms of effective assistance both as a constitutional and practical matter, also do not consider the specific issues and problems relating to misdemeanor advocacy.24 In short, there are no standards against which to judge the critical failures of representation in the lower criminal courts.25

Careful analysis of the current state of misdemeanor representation in the United States is inadequately developed, and the subject merits much more than the scant attention it now receives both in criminal justice literature and in practice.26 Thus, at a time when some

21 See infra Part II.A (explaining how the Sixth Amendment right to counsel applies in any case where the defendant is sentenced to actual or suspended incarceration, and how many states offer more generous levels of misdemeanor representation, including states that confer the right to counsel for all misdemeanors regardless of the sentence). The vast majority of individuals charged with misdemeanors, and who have a right to counsel, qualify for state-appointed counsel. See Mary Sue Backus & Paul Marcus, The Right to Counsel in Criminal Cases, A National Crisis, 57 HASTINGS L.J. 1031, 1034 (2006) ("Poor people account for more than eighty percent of individuals prosecuted.").

22 See Strickland v. Washington, 466 U.S. 668, 687 (1984) (noting that defendant, to win claim of ineffective assistance of counsel, must demonstrate (1) that defense counsel's representation was deficient as judged by prevailing professional norms, and (2) that this deficiency was prejudicial to the defendant). For an insightful and comprehensive examination of the Court's jurisprudential journey towards the twoprong ineffective assistance test, see Donald A. Dripps, Effective Assistance of Counsel: The Case for an Ex Ante Parity Standard, 88 J. CRIM. L. & CRIMINOLOGY 242, 269-78 (1997); see also infra Part II.B.1 (discussing lack of Supreme Court cases on misdemeanor ineffective assistance).

23 See also infra note 157 and accompanying text. 24 See infra Part II.B.2. 25 See infra Part I. 26 Although the literature has largely failed to examine misdemeanors and other minor adjudications separately, there are some notable exceptions. See, e.g., Erica J. Hashimoto, The Price of Misdemeanor Representation, 49 WM. & MARY L. REV. 461, 461

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commentators have called for a greater focus on the felony representation crisis at the expense of misdemeanor representation,27 this Article recognizes a utilitarian argument for more attention to low-level cases, which affect so many individuals and communities and have serious hidden consequences.28 As one report noted, "[E]xperts have observed innumerable times that public defender offices across the country are underfunded. What is essentially unreported is how this underfunding disparately impacts those accused of misdemeanors."29

The crisis in misdemeanor representation and the lack of specific standards for this large category of cases raises important questions for courts, professional organizations, and defender offices. Should there be separate standards for misdemeanor representation? If felony ineffective assistance jurisprudence and existing professional

(2007); John Mitchell, Redefining the Sixth Amendment, 67 S. CAL. L. REV. 1215, 1222 (1994) (focusing on a "practical definition of the Sixth Amendment in the lower courts"). With respect to the realities of the lower criminal courts, see Michael Pinard, Broadening the Holistic Mindset: Incorporating Collateral Consequences and Reentry Into Criminal Defense Lawyering, 31 FORDHAM URB. L.J. 1067, 1069-70 & n.9 (2004); Ian Weinstein, The Adjudication of Minor Offenses in New York City, 31 FORDHAM URB. L.J. 1157, 1160-62 (2004); Steven Zeidman, Policing the Police: The Role of the Court and the Prosecution, 32 FORDHAM URB. L.J. 315, 316 (2005) (discussing New York City). Recent commentary on broken windows theory, although focused on the policing aspects of minor charges, is also relevant here. See, e.g., HARCOURT, supra note 16, at 67 (questioning whether broken windows is an effective strategy). With respect to misdemeanors more generally, "there is a startling dearth of data on misdemeanor case processing." Josh Bowers, Grassroots Plea Bargaining, 91 MARQ. L. REV. 85, 89 (2007) (noting how New York City is "something of an exception" to this general observation).

27 See Darryl K. Brown, Rationing Criminal Defense Entitlements: An Argument From Institutional Design, 104 COLUM. L. REV. 801, 801 (2004) (suggesting default rules by which indigent defense providers should ration scarce resources, including "a harmreduction principle that gives a qualified preference to suspects facing greater potential punishments"); Hashimoto, supra note 26, at 461 (arguing that states should free up limited defender resources by "significantly curtailing the appointment of counsel in low-level misdemeanor cases," but ignoring the collateral consequences of misdemeanor convictions). For a robust debate over the need for triage in criminal defense work, compare Mitchell, supra note 26, at 1222 (1994) (focusing on a "practical definition of the Sixth Amendment in the lower courts" and urging recognition of the need for triage in decision-making process about how to distribute defender resources), with Monroe H. Freedman, An Ethical Manifesto for Public Defenders, 39 VAL. U. L. REV. 911(2005) (rejecting Mitchell's call for triage and redefinition of the Sixth Amendment right to counsel). See also John B. Mitchell, In (Slightly Uncomfortable) Defense of "Triage" by Public Defenders, 39 VAL. U. L. REV. 925 (2005) (responding to Freedman).

28 See infra Part I.B. 29 MINOR CRIMES, MASSIVE WASTE, supra note 12, at 26.

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